' FAZAL ELAHI KHAN, J.-These seven Regular First Appeals arises out of the judgments and decrees of the learned Acquisition Judge in reference against the award No, 31 dated 2nd December, 1970 of Village Dheri, Tehsil Haripur. In all these cases common questions of law and facts are involved and almost similar evidence has been produced by the parties, these are, therefore, disposed of by this single judgment.
2. The relevant facts are that the entire estate of Village Dheri along-with built-up area was acquired for the construction of Tarbela Dam i. e. a public purpose at public expense, and notification under section 4 of the Land Acquisition Act to this effect was published in the official Gazette on 3rd May, 1967. After the issuance of the required notification and consideration of the objections raised by the interested persons the learned Acquisition Collector by tj5 award No, 31, dated 2nd December, 1971 fixed the compensation for different kinds of land, houses and fruit bearing trees as referred to and detailed in the same.
3. Feeling aggrieved of the assessm ent of compensation for their acquired land, built-up property and fruit bearing trees as well as over the classification of certain Khasra numbers the following objection petitions were referred to the learned Acquisition Judge for adjudication :
(1) Land Acquisition Case No, 82/4 of 1977 by Ahmed Khan against the Land Acquisition Collector and others wherein claim for the enhancement of compensation of their built up property was made. This reference was decided by the learned Acquisition Judge vide his judgment dated 5th July, 1979 the subject-matter of R. F. A. No, 24 of 1979.
(2) Land Acquisition Case No 84/4 of 1977 by Farman Khan and others-against the Land Acquisition Collector, claiming enhancement of the compensation for their agricultural land of various kinds and for the fruit bearing trees. This was decided by the learned Acquisition Judge, vide his judgment and decree dated 29th July, 1979 which is the subject-matter of R. F. A. No, 232 of 1979.
(3) Land Acquisition case No, 164/4 by Fazal-ur-Rehman, Chan Muhammad and others v. The Land Acquisition Collector, claiming enhancement in the valuation of their land, house and fruit bearing trees and further claimed reclassification of Khasra No, 2532. R. F. A. No, 64 of 1980 by the Collector and R. F. A. No, 54 of 1979 by Chan Muhammad are directed against the judgment and decree dated 19th September, 1979.
(4) Land Acquisition case No, 364/4 by Mst. Atta Jan against the Land Acquisition Collector, claiming enhancement in the valuation of her acquired land, built up property and fruit bearing trees, decided by the learned Acquisition Judge on 6th March, 1980 giving rise to R. F. A. No, 86 of 1980 by the Collector and Cross Objection bearing No, 15 of 1980 by Mst. Atta Jan.
(5) Land Acquisition case No, 64/4 of 1977 by Sher Bahadur and others against the Land Acquisition Collector claiming reclassification of their land bearing Khasra Nos. 2530 and 2535 and the enhancement of the compensation for the same as well as for a house. R. F. A. No, 44 of 1980 is directed against the decision of the learned Acquisition Judge in this case dated 11th May, 1980.
4. In all these cases there had been disputes between the parties over the valuation of their acquired agricultural land, built up property, fruit bearing trees and classification of some of the Khasra numbers referred to above. The relevant issues covering all these disputes and claims are reproduced as under :-
(1) Whether the land of the objectors has been undervalued, if so, what is the correct compensation to which the objectors are entitled ?
(2) Whether the fruit bearing trees of the objectors have been under valued, if so, to what fair compensation the objectors are entitled ?
(3) Whether the houses under reference have been undervalued, if so, to what fair compensation the objectors are entitled ?
(4) Whether the land of the objectors have been wrongly classified and under valued by the Collector, if so, what is the correct classification and fair compensation of the same ?
5. The learned Acquisition Judge after recording of the evidence of the parties, enhanced the compensation for different types of land, built-up property and fruit bearing trees. However, he rejected the claim of the objectors with regard to the reclassification of certain disputed Khasra numbers.
6. In order to resolve the disputes, we are going to take every disputed item, referred to above, one by one for decision in these appeals.
7. Land.-The learned Collector vide his award referred to above fixed the following valuations for the various types of land :- Rs, Bagh, Chahi, Chari Abi, Abadi ... 1,549 P. Lc.
Bahir Di Abi, Bangar Abi, Grera Abi ... 968 P. K.
Chari-Bela 774 P. K.
Kund, Maira ... 387 P. K.
Rakkar-Kalsi 194 P. K.
Banna, Banjar ... 97 P. K.
Other Ghair Mumkin 48 P. K.
8. However the learned Acquisition Judge relying on the judgment of Peshawar High Court Sher Ahmed Khan and 4 others v. Land Acquisition Collector and 2 others, pertaining to the same village and the same award, revalued the different types of land as under :- Rs, Chahi, Chari Abi, Bagh, Abadi ... ... 3,193/60 P.K.1 Bahir Di Abi, Bangar Abi Grera Abi ... 1,996 P.K.
Chari, Baila ... 1,596.80 P.K.
Kund, Maira ... ...
798.40 P.K.
Rakkar - ... ...
399.20 P.K.
Banjar Jadeed, Banjar Qadeem ...
199.60 P.K.
Daka Rakh, Chiragah, Banna Ghair Mumkin Deegar. ... ...
99.80 P.K.
9. The learned counsel for the Acquisition Collector however is aggrieved or the valuation fixed by the learned Acquisition Judge. According to the learned counsel the one year average relied upon in the aforementioned judgment of the Peshawar High Court, was based on the one year average wherein sixteen mutations of "Makhloot" type of land were entered. However he argued that the one year average based on those mutations has been wrongly accepted as pertained to one type of land and thereafter on these wrong premises the valuation of other types of land was worked out on the ratio of Parta Bandobasti. According to the learned counsel, if it had been brought to the notice of the learned Judges that the mutations in question given in the one year average pertains to Makhloot type of land, the valuation would have been otherwise. In order to make sure we have perused the one year average placed on the file of this case with special reference to the type of land, entered therein in the relevant mutations, where-from it is abundantly clear that the mutations in question related to the sale of Makhloot type of land. However, the contention of the learned counsel for the appellant that the same was accepted as the average for one type of land is misconceived. It was on the basis of this one year average of Makhloot type of land that the compensation for one type of land was worked out by the Patwari and then on the basis of Parta Bandobasti the valuation for different types of land was made. In the circumstances we are fully satisfied that the contention raised by the learned counsel is not supported by the record of this case. The compensation worked out on the basis of the one year average available on the record of this case in all respects tally with the amount awarded in the reported judgment referred to above. The objection of the learned counsel for the Acquisition Collector, with regard to the valuation fixed by the learned Acquisition Judge, for various types of acquired land. Is ill-founded and not maintainable. Consequently the finding of the learned Acquisition Judge to this extent is maintained.
10. Built-up property.-The learned Acquisition Judge after discarding the valuation fixed by the learned Acquisition Collector in his award placed reliance on the estimates of costs produced by the objectors and prepared by Malik Muhammad Aslam ex-Overseer and Inam Ullah Khan, Overseer. Both these overseers were produced as witnesses in the perspective cases in which they had prepared the estimates of costs at the instance of the objectors. The finding of the learned Collector with regard to the valuation of the built-up property was mainly discarded on the ground that the authors of these estimates who had visited the spot and had taken the measurements of the property were not produced before the learned Acquisition Judge in support of the valuation, given in the award. However, on the other hand the private overseers who had allegedly measured the property in question and had prepared the estimates of costs, supported the valuation by making appearance in the Court witnesses for the objectors and submitting themselves to the cross-examination of the opposite party. According to the learned counsel for the Acquisition Collector. The estimates of costs relied upon by the Acquisition Collector were prepared by the specialized agency and were based on the Composite Schedule of Rates 1966-67 and WAPDA Analysed rates. These estimates, as it appears from the record, were duly scrutinized, checked and rechecked by the higher authorities of Assessment Division while on the other hand the estimates prepared by the private overseers have been prepared at the instant of the objectors in the absence of the representative of the acquiring department or that of the Acquisition Collector. The same were never checked or supervised by any competent authority. It was also urged that Mr. Inam Ullah Khan, Sub-Engineer in cross-examination admitted that he had not served any notice on the representative of the acquiring department before he was making the measurements and working out the estimates. He also admitted that he has not given the boundaries of the houses of which he had prepared the estimates. He also admitted that he did not hold a diploma in Civil Engineering. To some extent similar is the statement of Muhammad Aslam, Overseer. It is also evident that the measurement given in the estimates of costs relied upon by the Acquisition Collector and those prepared by the private overseers tallies with each other and both these estimates are based on the Composite Schedule of Rates 1966-67. However, the reasons for the great difference in the two estimates of costs are not forthcoming on the record nor in the statements of the witnesses.
11. It is also evident that the learned Acquisition Judge has not accepted these estimates by the private overseers as worth credit and it was for this reason that arbitrarily a cut of 20% was imposed over the valuation made, so that it may become within a reasonable limit for comparison with the estimates given in the award. In the circumstances of the case when the measurements given in the two estimates were the same and the basis for the assessment of the valuation was also the Composite Schedule of Rates, 1966-67, it was for the objectors to have brought out the discrepency, by cogent evidence, is the valuation of the two estimates in order to succeed that the valuations made by the learned Acquisition Collector were wrong or inadequate. The learned Acquisition Judge failed to apply his mind to resolve difference existing in the two estimates.
12. The assessm ent of compensation by the private overseer came for consideration before the learned Judge of this Court in Regular First Appeal No, 94 of 1978 Land Acquisition Collector v. Abdul Ghani decided on 17th June, 1980, their Lordships in para. No, 6 of the judgment criticised the evidence of the private overseer as under :- "Rahim-ud-Din, Overseer who was examined by the Land Acquisition Judge as 0. W. Has stated that he visited the spot on 10th October, 1976 took the measurements and prepared the estimates of cost of houses under reference. He further added that these estimates were prepared on the basis of the Composite Schedule of Rates 1966-67. In cross-examination he admitted that he had not served any notice on any one of the present appellants to be present on the spot at the time of his spot inspection. He further stated that he had taken rough note on the spot which he could not produce in Court. Then he admitted that he did not allow the depreciation charges. He further stated that he had not recorded statement of any person on the spot and that the estimates of cost prepared by him were not checked by any higher authority."
13. Thereafter their Lordships held that "keeping in view all these factors we have come to the conclusion that the valuation of the suit property by the Land Acquisition Judge, and basing his conclusion on the testimony of the Overseer, was not correct in the presence of the clear evidence led from the side of the present respondents party."
14. On the same basis, in R.F.A. No, 60 of 1979. The Land Acquisition Collector v. Ghulam Sarwar decided on 13th November, 1982 and R. F. A. No, 77 of 1979 Land Acquisition Collector v. Aziz-ur- Rehrnan decided on 4th March, 1982 the statement of private overseer and the estimates prepared by him were not relied upon.
15. The argument of the learned counsel for the objectors to the admissibility of the estimates of costs prepared by the department and accepted by the Acquisition Collector, on the ground that the persons who prepared these estimates have not been produced in evidence, is misconceived, These estimates of costs accepted by the learned Acquisition Collector referred to in the award by itself is evidence of the fact in issue. It is the admitted proposition of law that the burden of proof heavily lies on the objectors to prove that the valuation given in the award is incorrect. The .4 Collector will be called upon to justify his valuation only when the objectors succeed, in discharging the burden, by proving that the valuation given in the award is incorrect and inadequate. However as observed above the estimates of costs prepared by the private overseer if excluded, being unreliable, we are left with no evidence from the side of the objectors to prove that the valuation given in the award is incorrect. We are supported in this view by the judgment of Lahore High Court Land Acquisition Collector v. Lt.-General Wajid All Khan Barqi. We are, therefore, of the view that the learned Acquisition Judge was wrong in accepting the estimates of costs prepared by the overseers privately engaged by the objectors in the circumstances of this case.
16. Consequently the finding of the learned Acquisition Judge with regard to refixation of the compensation for the built-up property is set aside and that of the learned Acquisition Collector given in the award is restored.
17. Fruit bearing trees. -Both the learned counsel for the parties agreed that the valuation for the fruit bearing trees is to be fixed in accordance with the rates given in the judgment Sher Ahmed Khan and 4 others v. Land Acquisition Collector and 2 others in which reliance has been placed on the Goshwara prepared by the E.A.D.A., the same Goshwara is available on the files of these cases and the objectors are entitled to the compensation for their fruit bearing trees at the rates given therein.
18. Classification.-The prayer for reclassification of Khasra No, 2532 was based on the entries in the daily diary pertaining to the year 1965-66 copy Exh.
0. W. 4/3 wherein this Khasra number appears under the column of "Taghiurat". However from the copy of Khasra Girdawari for the relevant period, i,e, Rabi 1965 up to 1970 Exh. O.W. 4/4, has also been placed on the file wherein Chan Muhammad is shown for the first time in possession of 100 kanals of land out of the total land measuring 222 kanals 4 marlas of this Khasra number. This 100 kanals of land had been shown as `Grera Abi'. The learned Collector as well as the learned Acquisition Judge has disbelieved this documentary evidence for the reasons that the entire Khasra number was shown as Ghair Mumkin Darya up to Rabi 1965 and thereafter change in the classification of land is shown for the first time in 1966. From the perusal of the Khasra Girdawari, even for Kharif 1965 and Rabi 1966, there appears to be a cross in the relevant column of register Khasra Girdawari (even shown in the copy placed on the record), indicating that the old entries continued, however, after cutting one of the line of the cross by overwriting the name of Chan Muhammad Hissadar Qabiz is shown and inserted. Keeping in view the above-mentioned cutting and insertion the learned Acquisition Judge was perfectly justified in not reclassifying the land in question as Grera Abi. It also does not appeal to reason that all of a sudden a considerable land measuring 100 kanals emerged from bed of the River, reclaimed and brought under plough within a short period of a year, allegedly, by one of a co-sharer.
19. Similar is the case with regard to the prayer of the objectors for the reclassification of Khasra Nos. 2535 and 2530. These two Khasra numbers were shown in the Jamabandi as Ghair Mumkin at the relevant time, however, in the Khasra Girdawari pertaining to these two Khasra numbers from Kharif 1965 to Kharif 1977 and copy of Roznamcha Waqiati dated 16th October, 1965 there has been shown Taghiur Kasht. However even than there is entry to the effect that there was cutting and overwriting and that the entries were doubtful. In the Khasra Girdawari, copy Exh. O.W. 4/1, relied upon by the objectors, in support of their claim before the disputed entries the land bearing Khasra No, 2530 measuring 77 kanals 5 marlas and land bearing Khasra No, 2535 measuring 126 kanals 8 marlas was shown as Ghair Mumkin Darya.
20. For the reasons given above reclassification as prayed for by the objectors was disallowed by the lower forum. In our view there appears to be no substance in the prayer of the objectors for the2 reclassification of the disputed Khasra numbers.
21. To sum up, we partially accept the appeals of the Land Acquisition Collector and others, modify the judgments and decrees of the learned Additional Judge, and hold that the objectors are entitled to the compensation for their acquired built up property at the rates fixed by the Land Acquisition Collector in his award as indicated above. Their prayer against the enhancement in the compensation for various kinds of land and fruit bearing trees is rejected. In consequence thereof cross-appeal No, 44 of 1980 by Sher Bahadur and others against the L.A. Collector and Appeal No, 54 of 1979 by Chan Muhammad against the Land Acquisition Collector stand dismissed. Due to the partial success of both the parties, we would allow the parties to bear their own costs. PLD 1978 Pesh. 138 PLD 1960 Lah. 469